2004 PLP 1518 (CLC)

Mrs. Tabinda Islam for Petitioner. Malik Amir Muhammad Joiya for Respondent No.

1. This Constitutional petition seeks judgment/order, dated 21-7-2003 passed by the learned Additional District Judge Mianwali, wheretfy extension, in time for furnishing :surety by the petitioner was refused, to be declared illegal, void, and of no legal consequence.

2. Precisely relevant facts are that respondent No.1 filed a suit for recovery of an amount of Rs.25000 on 6-7-2002, on the basis of a pronote; dated 27-10-2000 allegedly executed by the petitioner before the learned Senior Civil Judge Mianwali. The petitioner in spite of service did not appear to contest the suit, therefore, he was proceeded against ex parte. The learned Civil Judge, who was seized of the matter after recording the ex parte evidence of respondent No. 1, decreed his suit vide judgment and decree, dated 6-9-2002.

3. The petitioner filed an application under Order IX, rule

13. C. P. C' averring that he was never served because respondent No. l gave his incorrect address and thus he was not aware of the pendency of the suit. The learned trial Court -vide his order, dated 29-11-2002 suspended the execution of the ex parte decree subject to deposit of the decretal amount by the petitioner who aggrieved of the direction to deposit the decretal amount, filed a revision petition before the learned Additional District Judge which was accepted and the petitioner was required to furnish surety bond equal to the decretal amount to the satisfaction of the trial Court instead of cash deposit within one week, from the date of his order dated 25-6-2003.

4. The petitioner could not furnish the surety bond according to the direction of the learned Additional District Judge, dated 25-6-2003 and on 19-7-2003 filed an application for extension of time for furnishing surety bond or, the ground that he on account of misunderstanding could not comply the order, dated 25-6-2003 and showed his willingness for complying with the order within the extended period, The learned Additional District Judge disbelieved the stand of the petitioner and dismissed his application on 21-7-2003. The petitioner thereafter filed the instant Constitutional petition for the relief noted above and in response to notice respondent No.1 has appeared through his counsel.

5. The learned counsel for the petitioner submits that time for furnishing the surety bond was fixed by the learned Additional District Judge and thus, it was within his competence to grant the extension as prayed. According to her, cause furnished for non-compliance, was sufficient and bona fide for the relief prayed but the same has erroneously been refused. It was also contended that the impugned order, has been passed, being unaware of powers of the Court to extend the time, thus the same is void.

6. The learned counsel for respondent No. l who is only the contesting party, supported the order impugned and refuted the arguments of the petitioner. He argued that the petitioner is not entitled to any concession, as he has not complied with the clear and unambiguous direction of the learned Additional District Judge He further submitted that there existed no sufficient cause for extension of time prayed.

7. I have anxiously considered the respective arguments of the learned counsel for parties and have perused the record, appended herewith. On the face of the order passed by respondent No. 3 it is clear that the same was passed being oblivious of the provisions of section .148, C.R.C. which empowered the Court to extend time fixed by it, certainly for sufficient and good reasons. The petitioner had given reason of misunderstanding of the order, dated 25-6-2003 requiring him to furnish the surety bond which according to law was a good ground for showing indulgence by the Court, as held by the Honourable Supreme Court in the cases of Muhammad Farooq Imam v. Claims Commissioner, Lahore and 2 others PLD 1964 Supreme Court 585 and Dr. Sher Din Batra v. Abdul Rehman Wahla PLD 1983 Lah.

491. The Court in its discretion can extend time for doing any act, from time to time and can enlarge such period even though the period originally fixed may have expired. Application seeking extension was duly supported by an affidavit of the petitioner and there was nothing on the file to controvert it, even in form of a counter affidavit thus, the order, dated 21-7-2003, passed by respondent No. 3 being illegal and void is declared, as prayed. With the result that the petitioner is allowed to file the required surety bond in terms of order, dated 25-6-2003, till 8-5-2004 subject to payment of costs of Rs.500 to the respondent No. l who has suffered on account of no fault on his part. This petition is accordingly accepted with no order as to costs. M.H./G-32/L Petition allowed.